Kagan & the Paper Trail

This appeared in this corner in October 2005: “So the president has nominated another justice to the SCOTUS – Harriet Miers – and the screaming has already begun…from both sides. Leahy (sometimes irreverently referred to as Senator Leaky) is clearly aghast in that there is practically no paper trail by which to judge the nominee.” Miers later withdrew from the shootout/circus that often comprises most any Congressional hearing.

Miers came in for a lot of criticism from republicans, too, mostly on the basis of not having enough judicial experience for the job, if memory serves. So…when Miers stepped down, President Bush delivered the nomination of Samuel Alito to the august Senate Judicial Committee, and Alito, just as Chief Justice Roberts had done earlier in the year during his confirmation hearings, proceeded to turn the committee democrats upside down. The likes of Leahy, Biden, Durbin and Feingold were practically frothing at their collective mouths when the dust had settled.

Both Roberts and Alito had been appeals judges and both had enough paper trails to accommodate the senators with reams – yea, books – of material which their aides could (and did) constantly shove under the senators’ noses, the better to help them at least try to elicit a perjury charge. Neither Roberts nor Alito had even a legal pad on his desk but simply talked the tormentors into oblivion…from memory of cases, not from memos or notes.

Perhaps the only nominee in history with less of a paper trail than Miers is the current nominee, Elena Kagan. She’s spent most of her time either working in politics (Clinton White House) or in law schools as either professor (University of Chicago, colleague of Obama) or dean (Harvard Law), where she reckoned that military recruiters would not invade her territory but was turned around, of course.

Kagan wrote a thesis when she was a student that included this: “The story is sad but also a chastening one for those who, more than a half century after socialism’s decline, still wish to change America.” Kagan noted that her interest in socialism was triggered by her brother’s radicalism. One can’t say that on the basis of this statement Kagan considered herself among the sad or even that she had the maturity at that time to form a valid opinion.

One notices, however, that a president who, despite all protestations to the contrary by him or others, is a socialist would be expected to appoint someone to the Court who would write something like that and be among the sad right up till now. Just like Kagan was reversed at Harvard, Justice Sotomayor was reversed by the SCOTUS when she attempted to void the civil-rights laws and insist that inferior applicants be favored over qualified ones with race as the determinant.

These folks, including Justices Ginsberg and the retiring Stevens (who spent half his time in Florida instead of in the hallowed halls from fall until spring each year), are not jurists but social engineers and consider their primary responsibility to be legislating from the bench those entitlements that can’t be gotten through the Congress. Obama provided the paradigm during his campaign when he complained that the U.S. Constitution didn’t deal with redistribution of the wealth, something, of course, that the founding fathers never even imagined – confiscation of personal possessions for any reason other than criminal, if that. Consequently, Obama needs justices who will un-constitute the Constitution.

This is from this corner in September 2005: “One remembers Senators Schumer and Durbin as they reacted to Roberts’ first nomination as the replacement for Associate Justice Sandra Day O’Connor, who retired not long before Chief Justice Rehnquist died. They made it plain that they intended to be the sharks in the water, and intimated that Roberts would struggle mightily to escape their blood-seeking incisors. They exuded the confidence of super-lawyers out to outwit even the craftiest of opponents. By the time the hearing was over, they had been reduced to sputtering whiners, reflecting a constant theme of the democrats, to wit, that they desperately needed to know the HEART of the judge. Imagine. Schumer and Durbin, senatorial pit-bulls, wanted to know if Roberts was a nice guy with honorable intentions.”

These characters, still in the game, will not be interested in Kagan’s HEART, which they know to be in the right place, on the side of those who insist on quotas and the right of the government to take whatever it (the president) feels necessary, such as General Motors, Chrysler, Fannie, Freddy, AIG, etc. One wonders if the republicans on the Judiciary Committee will be as sanguine as will be Schumer and Durbin, who in contemplating affairs of the HEART has compared American GIs with Soviet Gulag keepers and Nazi storm troopers, in their questioning of Kagan. Probably not! Of course, her paper trail goes through the Clinton Library, so Sandy Berger might be there right now stuffing his pants with appropriate documents.

And so it goes.
Jim Clark